Author: Michael

Trigger warning: this post is long. Before you hit “send” on the email to me complaining about how long, remember that nothing is stopping you from reading any further than here.

The Vermont City Marathon is Sunday. I’m entered. If I finish, it’ll be my 12th VCM and 21st overall. To rest up, I’m about to turn this column over to a guest blogger.

Before I do . . .

. . . I haven’t always been a runner.

In 2006, a few of the friends I introduced to you in a blog about a long day in my basement asked me to run on their relay team in the marathon. I agreed. I had the good fortune of drawing the relay’s last leg: the adrenaline rush from running through a jam-packed Waterfront Park to the finish is addicting. I’ve been hooked ever since.

Over the next two years, I built up to the full 26.2, completing my first full marathon in 2008. The year in between? I ran on another relay team. This time, with a team that included my good friend Jake Perkinson.

Jake is an attorney. That’s not how I know him or why I like him. Two of those same basement friends – Debbie & Little Sethie – used to have a post-marathon party every year. In our younger days, we used the BBQ to pass the time between the marathon and nights at Esox that often devolved into disputes over whether dwindling dollars were better spent on another beer or another song from the bar’s fabled digital jukebox. I met Jake at one of those post-marathon soirees.

Jake kept a diary of his training for our 2007 relay team. He sent it to us a few days after the race. It is, beyond doubt both reasonable & unreasonable, my favorite work authored by a lawyer-runner.

The True and Complete Diary of Pappy Perkinson’s Preparation for the 2007 Vermont City Marathon Relay Team

PRELIMINARIES

January 4, 2007: Received an e-mail from Michael Moore (a/k/a Chooch) notifying friends of the impending registration deadline for the Vermont City Marathon, an event that has become a tradition among a certain circle of friends. Feeling mildly (yet somehow pleasantly) disconnected from that circle, I reply immediately agreeing to participate. Then, even more immediately, I put the matter out of mind for the next three months believing that the end of May will never come and, if it does, I will likely be dead anyway. My confidence in this plan of action is so high that I dedicate no time at all to concocting the inevitably necessary excuses to use when I am forced to ultimately renege on this ill-conceived and precipitous commitment.

March 31, 2007: A message from Chooch is left on the home answering machine requesting information to permit registration. I studiously ignore this communication.

April 3, 2007: While drinking a long-neck MGD and using the bottle cap to scrape the last bits of ice cream from a discarded (I believe prematurely) carton, I am informed by my wife, Cate, that I am not to make a joke out of running in the marathon. I force myself to respond with a look of surprise mingled with hurt which causes me to choke on the bottle cap. After performing the Heimlich maneuver on myself (Cate refusing all assistance), I tell Cate not to worry which she rightfully interprets as proof that I have no intention of making any serious effort. Of course, she is right.

April 5, 2007: I receive a call from Chooch regarding the particulars of registration. After providing him with the description of a distant cousin for identification purposes, I inquire who will be on our team. Chooch lists the runners which confirms that I am, indeed, the weakest link. I know that even the exceedingly low expectations held for me will be impossible to meet and that no matter how low the bar is set it is a standard which I cannot achieve and which I am unwilling to attempt. This preys on me for small parts of several days.

TRAINING DAY(S)

April 9, 2007: 8:00 p.m. My fear of dying on the course has gotten the better of my pride in slothfulness and I decide to go to bed at 8:30 so that I am able to get up refreshed at 5:00 a.m. to run before the children wake up and the household descends into mayhem. To that end I carefully select my running gear and place it in an orderly pile at the top of the stairs so I can alight in the morning without disturbing my beautiful wife and children.

April 9, 2007 11:30 p.m. I am awoken by the cries of an infant. I pretend to still be asleep until Cate can no longer bear the noise and gets up to comfort the child at which point I act as though her movements have awakened me and roll fitfully over into the warmed-up spot on her side of the bed.

April 9, 2007 11:45 p.m. I decide that if I am not asleep now, I will be too tired at 5:00 a.m. to do anything and turn off the alarm clock. I fall asleep immediately.

April 11, 2007: 5:15 a.m. I am awoken by the sounds of a high-pitched train whistle as interpreted by the deceptively powerful lungs of a three-year-old named Cyrus. I know this means he will soon trundle his footy pajamas down to our bedroom, intentionally waking the infant on his way either by hooting loudly into her room or vigorously shaking the crib if evidence of her wakefulness is not immediately apparent. When I hear his door open at 5:30 I leap out of bed and tell Cate that I am going for a run.

I quickly dress, feeling self-satisfied (whether about actually getting out to run or avoiding the task of dealing with two crying children at dawn I will leave to the reader’s own informed speculation). As I step outside bracing for a cold blast of late winter wind, I am pleasantly surprised by the stillness of the air and a light humidity taking the edge off 20 degrees Fahrenheit. Without stretching (not because I am foolish or lazy, but simply because I cannot) I begin my run.

Stepping out into the street I decide to meet this challenge head on and, rejecting the easy way, direct my feet UP hill. As I begin, I feel I am magnificent, I am indomitable, I am supreme! I glory in the early morning air and the feeling of the ground moving freely away beneath my feet. A crescent moon is brightly lit in the pale gray southeastern sky, shouldering silent service as a witness to the graceful beauty of my ambulation.

And then it begins. Twenty yards away from my house my throat dries out and after several more strides it begins to seethe as though something is trying to saw its way out of my neck using a cheese grater lubricated with battery acid. Every breath is like swallowing a box of needles and every step is torture. The pain induces a combination of nausea and dizziness that I have not experienced for over fifteen years absent alcoholic supplements. In an attempt to psychologically urge myself onward I think back to my days as a youth when I reveled in the exhilaration of pushing my body to the breaking point and beyond. And I thought to myself how stupid I was back then.

Despite the pain, I power through and, in a twist of unfathomable divine design, while my throat is a desert, my nose begins to fill with mucus. I grimace and try to swallow to relieve the parched expanse of my throat but only choke on a bilious mixture of snot and thick saliva. Now I am tired. And uncomfortable. But not defeated. I give a stallion’s snort and hock a huge lugee with as much force as I can muster. Unfortunately, given my physical condition, the missile barely clears my lips and plummets down the front of my sweatshirt, leaving a gray-green paisley stain.

After 200 yards I reach the top of the hill, expecting relief, only to look out from its summit at what always seemed to be a gently rising straightaway, now looming forbiddingly as a hideous and gross trick of nature. “A hill on top of a hill! This is bullshit,” I think to myself. But I persevere and eventually reach the crest of this cunning confirmation of nature’s devilish duplicity.

As I approach the intersection capping this second rise I realize I have a choice to make. I can turn now or push on for another 200 yards. I make my decision quickly, resolving that if I go too far today, I might eliminate a goal that could otherwise motivate me tomorrow. With a dramatic show of feigned regret, I turn my feet to the downward slope towards home.

Now my breathing is coming easier, and I concentrate on my form, keeping a four-count beat and raising my arms high. I increase my speed and feel the wind blowing through my billowy locks. Then, from behind, I hear the squeaking noise of rubber on asphalt and I am overtaken by a woman with graying hair outfitted in spandex pants and a knitted sweater who does not raise her hands above her hips when she runs. As she trots past me I am given over to a surreal feeling of swimming through concrete. I contemplate an attempt at increasing my speed, at least to keep her in sight for a minute or two, but then decide the wiser and more dignified course is to pretend I am engaged in a cool down exercise. I consciously reduce my speed and pretend to stretch my upper body causing me to stumble and almost fall. Realizing that any fall will crush me both mentally and physically and lead to an emotional death spiral I know I do not have the strength to recover from, I dispense with the cool-down ruse and return my full attention to running. As I approach my house, my septuagenarian companion on this early morning run turns to climb the hill I started out on and breaks into a sprint, disappearing over the top before I reach the corner.

As I climb the steps to my house, I bend down with a monumental effort to pick up the morning paper and walk into a mudroom that on any other day sends shivers through my body with its ice-box coolness but which today feels like walking into a sauna. I strip off my clothes, tearing at them like a madman and run a cold shower, nearly collapsing with a coughing fit before I am able to wedge myself into the stall for support.

I spend the rest of the day sweating, coughing and feeling a foreboding soreness in my lungs. This is going to be great. I can’t wait for tomorrow.

April 12, 2007: 1:30 a.m. I am lying in bed, awoken once again by my own little piece of heaven fallen to earth. As I attempt to turn over to pull the pillow over my head and drown out her nocturnal siren song I am suddenly seized with simultaneous shooting pains in my forearms, thighs, back and chest. This fills me with a mix of emotion: pain (obviously), but also, and to a much greater degree, relief, because here is my excuse not to go running in the morning. My guilt wrestles momentarily with the more aggressive of my venal spirits and quickly gives up as Cate comforts the baby and I am able to fall gently back to sleep, safe in the knowledge that rest and recuperation is an important part of any training program. I send thanks to Heaven for allowing me to formulate this rationale without the slightest strain at a moment’s notice and I am at peace with the World.

April 12, 2007: 6:30 a.m. (just after I should be finishing up my morning run) it begins to snow and the knowledge that I may likely lose another opportunity to run tomorrow briefly provides a toehold for my guilty conscience. But, like a fantasy Battle of the Bands between Kiss and New Kids on the Block my darker angels push guilt off its precarious ledge and continue to pummel it on its woeful descent, making sure it does not ever think about getting up again.

May 2, 2007: 5:15 a.m. The baby is visiting the bed so I am awake. I feel strangely invigorated and lean over to whisper to my wife: “I’m going to go running.” She responds: “I thought you were going to say you were going to get a beer.” The baby smiles, drools and then starts crying so I shuffle down the stairs and launch another assault against Ledge Road.

This time I wisely cut off the ascent of the Ledge by detouring down Iranistan Road, still uphill, but a much gentler rise. My lungs begin to seize and my throat provides a reprise of its past agitations by simultaneously constricting and drying out. But not as bad as last time. I make it about 2 miles on fairly flat streets. When I get to the bottom of my street I break into a sprint and use my last remaining strength to reach my driveway. As I attempt this last parry, the paper boy gives me a dirty look for holding him up.

The sprint nearly kills me and it takes a while to catch my breath. Inside again I begin to feel ill and now have a pounding headache. I hate Chooch.

May 22, 2007: I realize that I am beginning to panic because I have not determined whether a five-kilometer run will kill me or not. I start off again, gasping for air as usual, but find that after two miles I am still alive. This is proof enough and I walk the rest of the way home.

EPILOGUE

Team I Hate Running did not finish last. I believe I averaged 11 minutes per mile – not bad for three days of training over five months (especially considering how much I drank the day before). Four days after the race my legs still hurt. I can’t wait until next year.

Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday

Question 1

You’re at a CLE. You are re-reading Jake’s marathon diary because it’s so awesome. Still, your brain is vaguely aware of me saying things like:

it must be not be unreasonable;

it must be reduced to a writing that is signed by the client;

it must state whether expenses will be deducted before or after it’s calculated; and,

it must be based on the outcome of the matter. If it’s based on an offer that the client rejects, at least one state’s Supreme Court has held that it’s unethical.

What was I discussing?

Question 2

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer. Which is most accurate?

Per the rule, the lawyer shall not represent a client:

A. with interests materially adverse to the prospective client.

B. with interests materially adverse to the prospective client in the same or a substantially related matter.

C. with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.

D. None of the above. We’ve yet to adopt any version of the ABA Model Rule on prospective clients.

Question 3

By rule, a lawyer may not settle a claim or potential claim for malpractice with an unrepresented client or former client.

D. True, unless the client or former client is advised in writing of the desirability of seeking and is given a reasonably opportunity to seek the advice of independent legal counsel in connection with the matter.

Question 4

Having made this confession, it pains Me to say that I’m not a big fan of Taylor Swift’s new single. Still, in her honor, one of these things is not like the other. Which one?

The rule that requires a lawyer to:

A. keep copies of advertisements for 2 years

B. keep confidential information relating to the representation of client

C. keep trust account records for 6 years

D. keep the lawyer’s own funds separate from client funds

Question 5

He’s back!

There’s a lawyer who used to represent a woman whose real name is Stephanie Clifford. This week, federal prosecutors alleged that the lawyer sent a “fraudulent and unauthorized letter” to Clifford’s literary agent in order to divert approximately $300,000 intended for Ms. Clifford. Per Manhattan U.S. Attorney Geoffrey Berman:

“Far from zealously representing his client, [the lawyer] as alleged, instead engaged in outright deception and theft, victimizing rather than advocating for his client.”

Web bugs and legal ethics are in the news this week. Navy lawyers prosecuting the high-profile court martials two former SEALS allegedly inserted email tracking software into emails sent to the defense team and media outlets. The Military Times, the ABA Journal, the Guardian, and the Associated Press covered the story.

First, what’s a web bug? For the purposes of this post, a web bug is email tracking software.

Ok, so why is that important? Read the articles on the Navy cases. The ABA Journal headline sums it up: “Defense lawyers accuse military prosecutor of sending them emails with tracking software.”

More specifically, imagine yourself representing one of the accused. Now, further imagine yourself receiving an email from the prosecutor. An email that includes the type of tracking software at issue in the ISBA advisory opinion. Per the ISBA:

“The present inquiry involves the use of email ‘tracking’ software, applications that
permit the sender of an email message to secretly monitor the receipt and subsequent handling of the message, including any attachments. The specific technology, operation, and other features of such software appear to vary among vendors. Typically, however, tracking software inserts an invisible image or code into an email message that is automatically activated when the email is opened. Once activated, the software reports to the sender, without the knowledge of the recipient, detailed information regarding the recipient’s use of the message. Depending on the vendor, the information reported back to the sender may include: when the email was opened; who opened the email; the type of device used to open the email; how long the email was open; whether and how long any attachments, or individual pages of an attachment, were opened; when and how often the email or any attachments, or individual pages of an attachment, were reopened; whether and what attachments were downloaded; whether and when the email or any attachments were forwarded; the email address of any subsequent recipient; and the general geographic location of the device that received the forwarded message or attachment.”

A few thoughts.

To date, nearly everyone agrees that it’s a violation of the Rules of Professional Conduct to insert web bugs into emails sent to an opposing party or counsel.

The SEAL story raises a perfect example of tech competence. Earlier this month, one of the lead defense attorneys received an email from the prosecutor. Unlike prior emails from the prosecutor, it contained an unusual logo below the prosecutor’s signature. The logo was of a bald eagle and American flag perched on the scales of justice. The image aroused the attorney’s suspicions. So much so that he wrote to the prosecutor:

“I am writing regarding your emails from yesterday, which contained an embedded image that was not contained in any of your previous emails. At the risk of sounding paranoid, this image is not an attachment, but rather a link to an unsecured server which, if downloaded, can be used to track emails, including forwards. I would hope that you aren’t looking to track emails of defense counsel, so I wanted to make sure there wasn’t a security breach on your end. Given the leaks in this case, I am sure you can understand.”

Well, here we are. Sometimes they are out to get you.

Finally, I want to reiterate a point I made when I first blogged about the Illinois advisory opinion.

I do not disagree with any of the four opinions that have concluded that a lawyer’s surreptitious intrusion into a privileged relationship violates the rules. However, I differ with one aspect of the Illinois opinion.

The ISBA noted that “there do not appear to be any generally available or consistently reliable devices or programs capable of detecting or blocking email tracking software.” As I stated then, I am not certain that I agree. Indeed, shortly after I posted my blog, several tech vendors who follow me on social media either commented on the post or reached out to me privately. Without exception, they agreed that there are a host of reasonably available countermeasures for law firms to employ against web bugs.

Moreover, I think it’s risky for a lawyer to rely on the old “well, they shouldn’t be unethically spying on me.”

I agree, nobody should be spying on you. And, when it comes to web bugs and email traacking software, the spies might always remain one step ahead.

But that does not relieve you of the duty to stay abreast of developments in technology and to take reasonable precautions against the unauthorized access to or inadvertent disclosure of information related to the representation of a client.

Granted, as a morning person and a creature of spring & summer, I’m biased. That being said, between the sun, the bluebird skies, and the temperature, it doesn’t get much better than this morning in Vermont.

Speaking of spring and summer . . .

. . . oh wait, before I go on: happy birthday Ben Traverse! Ben has long contributed to others’ wellness, including mine. He was one of the earliest supporters of this blog, has a stellar record of providing pro bono services to clients unable to afford legal services, and, via his leadership role with the Young Lawyers Division, has served the past several years on the VBA’s Board of Managers. If you know him, check in with him today to wish him well.

Speaking of checking in, back to our regularly scheduled blog.

If you’re at all like me, you associate spring and summer with an improved mood & outlook on life. ‘specially ’round these parts, winter is long & dreary. So, as you enjoy a coffee on your porch with the only sounds being those of the birds, and as you revel in rolling the recycle bin to the curb without having to drag it thru slush, a morning like today’s lifts the spirits. Spring, summer, and all the good that comes with each are finally here.

But not everyone feels the same.

Like Ben Traverse, Andrew Manitsky sits on the VBA Board of Managers and has long-supported this blog and the profession’s larger efforts on attorney wellness. He’s a member of a PRB hearing panel and gets his wellness on by playing in a band. Last weekend, Andrew sent me this opinion piece that ran in the New York Times.

Warning: it is a heavy read.

But it raises an important point: for some, spring is a time of despair. Here’s the opening paragraph:

“It’s a popular and perhaps dangerous belief, reinforced by that inescapable Christmas classic “It’s a Wonderful Life,” that winter is the peak season for suicide. Yet experts have known since the late 1800s that it’s not true: More people take their own lives in the spring months than in other times of the year. No definitive explanations have emerged for why this is so.”

From there, the author shares a moving personal story. Then, concludes with a tip that all of us should consider. Referring to spring, she writes:

“It brings new pleasures by the week — asparagus in the farmers’ market, excitable toddlers in the playgrounds — and also a reminder to try to reach out to people who have lost someone recently, or those who seem withdrawn. They may need to be given a chance to talk about how they’re doing, and if things are very bad, encouraged to get the professional support they need. I can confirm that with time, help and love, things get better.”

Back to my original thoughts.

Speaking of spring and of checking in with someone, odds are that you know or work with an attorney who, if not struggling with significant behavioral health issues, is on the path towards the full-on struggle. An attorney who has started to withdraw.

Reach out, check in. As the author points out, sometimes that’s all it takes to make a difference for someone.

And, as regular readers of this blog know, I’m a big believer that we can make a difference, one person at a time.

I’ve used the past few Tuesdays to post on trust accounting. I’m going off script today to call attention to a disciplinary case that strikes me as important.

Alberto Bernabe is a professor of law at the John Marshall Law School. Regular readers will recognize Professor Bernabe as a frequent member of this blog’s #fiveforfriday Honor Roll. His Professional Responsibility Blog is a fantastic source of information on legal ethics & professional responsibility.

Rule 1.5(c) allows a fee that is contingent upon the outcome of a matter; and,

Rule 1.8(i) prohibits a lawyer from acquiring a proprietary interest in a client’s cause of action but allows (1) liens authorized by law to secure fees & expenses; and (2) contracts for reasonable contingent fees.

The facts of the Tennessee case:

Client filed a pro se complaint alleging that she’d been injured by the defendant’s negligence. Soon thereafter, Client retained Law Firm. Client & Law Firm entered into a written fee agreement. Per the agreement, Client would pay Law Firm a contingent fee, plus expenses. The amount: 40% if recovery were made before an appeal, 45% if recovery made after an appeal. The fee agreement did not include any language that provided for an hourly fee. It did, however, include this provision:

“Should [Client] refuse to make any settlement which my attorneys advise me is reasonable and should be taken, then I understand that I am responsible for their fee on the basis of that offer, unless they waive this provision.”

Following discovery, the defendant offered $12,500. Attorney and another at Law Firm advised Client to accept. Client did not.

Attorney moved to withdraw. In the motion, Attorney also requested a lien in the amount of $13,605 for fees, plus $2,4528.52 for expenses. The motion asserted that Law Firm had put in 45.35 hours of work at $300 per hour. The court granted the motion to withdraw but did not rule on the request for a lien.

Eventually, Client filed a disciplinary complaint. By then, Attorney had filed two additional motions requesting a lien on any recovery. The final request referenced the fee agreement and sought 40% of the settlement offer that Client had rejected.

The “Settlement Offer Provision” was unreasonable in that it by recommending that Client accept an offer, “Attorney thereby became entitled to a fee, regardless of whether [Client] accepted the offer and regardless of whether she obtained any recovery whatsoever.”

As noted by Professor Bernabe, Faughnan on Ethics blogged on the opinion here. Like Bernabe, Faughnan is a terrific resources on professional responsibility. The post notes:

“At its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision.”

The post goes on to remind us that, generally, the rules allow lawyers who withdraw “to assert a lien as authorized by statute and pursuant to either the terms of their contract or, perhaps, depending on how things turn out for payment in the form of quantum meruit.”

Again, this is a Tennessee opinion. It’s worth noting, however, that the rules involved are identical to Vermont’s.

D. a client whose deadline to appeal is about to run, but who has not instructed the lawyer whether to file the appeal.

Question 3

Consider the following:

a reasonable belief that the lawyer will be able to provide competent & diligent representation to each affected client;

no assertion of a claim by one client against another represented by the same lawyer;

informed consent, confirmed in writing.

By rule, each of the 3 is relevant to what general question?

Each of 3 appears in Rule 1.7(b) and are relevant to whether a lawyer may represent a client notwithstanding a concurrent conflict of interest.

Question 4

Is there a rule that specifcially addresses a lawyer’s ethical duties when serving as an arbitrator, mediator, or in any other such capacity to assist two or more persons who are not clients to resolve a dispute?

I’ve often spoken on lawyer’s duty to provide competent advice related to a client’s preservation of electronically stored information that might have potential evidentiary value.

Recently, one of the world’s most famous athletes was named as a defendant in a wrongful death suit. The athlete owns a restaurant that is also a defendant. Central to the case is an allegation that the restaurant over-served an employee who drank at the bar after his shift, drove, and died in a car accident after leaving.

This week, the plaintiff’s lawyers accused the restaurant of destroying video of the decedent drinking at the bar in the hours prior to the fatal crash.

I’ve got a little bit of each for you in this week’s column. And the most recent event I’m going to reference took place 46 years ago! The more things change . . . yada, yada, yada.

Digging for topics this morning, a few tidbits interested me. On this day in history:

John Jay died (1829)

Archibald Cox was born (1912)

The Watergate hearings began (1973)

Thinking about each, I was struck by how we tend to think that our moment in time is of greater import or weightier than any prior moment.

Nope. We’ve always had our moments. Lawyers included.

I’ve referenced Watergate, both in this blog and at CLEs. It was a seminal event in legal ethics. That’s NOT a political statement. In my book, no party or philosophy lacks members or adherents unable to conform themselves to the Rules of Professional Conduct. Indeed, when it comes to presidents who’ve lost their law licenses, the major parties stand tied 1-1.

Let’s hope that’s a tie that’s never broken.

Rather, Watergate’s relation to and impact on legal ethics is fact. At least 14 lawyers tied to the Nixon administration or reelection campaign eventually had disciplinary sanctions imposed against their law licenses: 8 disbarred, 6 suspended. As the ABA Journal wrote here, the fallout included significant changes to the law of legal ethics and the rules governing lawyers.

In short, Watergate was a Moment.

Now, speaking of ties . . .

John Jay, most of you know, was the first Chief Justice of the United States Supreme Court. Prior to this morning, I didn’t know much about him. After learning that today is the anniversary of his death, I started researching him. One link led to another and, next thing I knew, I found myself reading about a lawyer who had more than his fair share of moments: Aaron Burr.

In Jay’s day, the Electoral College was kind of a mess. To wit: the presidential election of 1800. Two lawyers tied. Thomas Jefferson and Aaron Burr each received 73 electoral votes. As if a presidential tie wasn’t a “moment” in and of itself, Jefferson & Burr were running mates! To tell the story would swallow this post. You can read about it here.

(Aside: anyone who watches VEEP will know how we break ties for the presidency. Amazing that I learned about the 12th Amendment to the U.S. Constitution from an HBO sitcom.)

Anyhow, Aaron Burr fascinates me.

1800: Burr ran as Jefferson’s vice-president, and apparently refused to concede when the two tied in the Electoral College.

1801: the tie was broken in Jefferson’s favor, with Burr’s long-time political foe, Alexander Hamilton, playing a key role in breaking it.

Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday

Question 1

When a lawyer holds funds in which two or more persons claim interests, a rule specifically requires the lawyer:

A. to resolve the dispute;

B. to keep the funds separate until the dispute is resolved;

C. to promptly distribute all portions that are not in dispute;

D. B & C.

Question 2

Speaking of Watergate, if you’re at a CLE and hear me talking about a lawyer’s duty “to go up the ladder,” I’m most likely talking about a lawyer who represents:

A. an organization.

B. both the insured and an insurance company in a civil case.

C. a child.

D. a client whose deadline to appeal is about to run, but who has not instructed the lawyer whether to file the appeal.

Question 3

Consider the following:

a reasonable belief that the lawyer will be able to provide competent & diligent representation to each affected client;

no assertion of a claim by one client against another represented by the same lawyer;

informed consent, confirmed in writing.

By rule, each of the 3 is relevant to what general question?

Question 4

Is there a rule that specifcially addresses a lawyer’s ethical duties when serving as an arbitrator, mediator, or in any other such capacity to assist two or more persons who are not clients to resolve a dispute?

D. Yes. There’s a rule that applies to so-called “third-party neutrals” and a comment to the rule indicates that lawyers serving as such may also be subject to other codes of ethics.

Question 5

I’ve often spoken on lawyer’s duty to provide competent advice related to a client’s preservation of electronically stored information that might have potential evidentiary value.

Recently, one of the world’s most famous athletes was named as a defendant in a wrongful death suit. The athlete owns a restaurant that is also a defendant. Central to the case is an allegation that the restaurant over-served an employee who drank at the bar after his shift, drove, and died in a car accident after leaving.

This week, the plaintiff’s lawyers accused the restaurant of destroying video of the decedent drinking at the bar in the hours prior to the fatal crash.

Last week, I used this space to celebrate Joan Wing. The post generated a ton of feedback, mostly from lawyers grateful for Joan having mentored them. The feedback got me thinking.

Then, I read this post in the ABA Journal. The post references a survey of Florida’s young lawyers. Per the survey, many of Florida’s young lawyers aren’t happy with their chosen profession. The results got me thinking even more.

In my post on Joan, I suggested that we try to be more like her. Mentoring a younger attorney presents an opportunity to do so.

I can hear you now: how’s that wellness? The Vermonter that I am, I answer your question with my own: how’s it not? Consider:

What if:

you showed a younger attorney that you cared enough to help her become a better attorney?

you helped a newer attorney avoid some of the mistakes you made as a younger attorney?

introduced an attorney who is brand new to Vermont to other attorneys who have established themselves here?

did nothing more than listen to a younger attorney who is frustrated, anxious and questioning whether he wants to continue in the profession?

It’d certainly help the younger attorney’s wellness, and likely would help yours as well. Not only that, you might learn a thing or two from the younger attorney. Umm, tech competence anyone?

And if that’s not enough, there’s CLE credit!

A few years ago, the Vermont Supreme Court adopted new Rules of Admission. The rules did away with the “clerkship.” Now, whether by exam or motion, new lawyers have one year to complete 15 hours of CLE in the basics of Vermont practice & procedure. Additionally, attorneys admitted by exam have one year to complete a mentorship. Mentors are eligible for up to 5 hours of CLE credit per reporting period.

We need mentors. If interested, email me. I keep a list of those willing to serve.

Second post in one day. Both on trust accounting. What is the world coming to?

This morning, Teddy KGB helped to remind us that lawyers have a duty to deliver funds to which clients and third persons are entitled. Our discussion was predicated on the fact that there is no dispute that a client or third person is entitled to the funds that the lawyer intends to disburse. What about when more than one person asserts an interest in the funds?

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.

The entirety of paragraph (e) is relevant:

“(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be held separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

When does a third party have an interest in funds that a lawyer is holding in trust for a client or third person? In other words, (1) when must a lawyer notify someone that the lawyer received funds; and, (2) when would a dispute over funds prohibit disbursement?

Often, the comments to the rules are helpful. Comment [4] to Rule 1.15 says:

“Paragraph (e) recognizes that third parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds collected. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.”

Ummm, ok. But, again: what are the “interests” and “claims” that trigger the rule?

A few months ago, I found this advisory opinion from the Virginia State Bar. I find pages 1-4 particularly helpful.

Let me be clear: here in Vermont, I do not know how disciplinary counsel, a hearing panel, or the Supreme Court would approach the issue. However, I think the opinion from the Virginia State Bar is useful in formulating the appropriate thought process.

Some key quotes from the opinion:

“In the absence of a valid third-party interest in the funds, the lawyer owes no duty to a creditor of the client and must act in the best interests of the client.”

This is important. In other words, when it comes to funds, a lawyer’s primary loyalty remains to the client and the conflict rules continue apply.

“The mere assertion of an unsecured claim by a creditor does not create an ‘interest’ in the funds held by the lawyer. Therefore, claims unrelated to the subject matter of the representation, though just, are not sufficient to trigger duties to the creditor without a valid assignment or perfected lien.”

This is consistent with how I’ve approached the issue. Standing alone, “Hey, your client owes me money” isn’t enough. Even if it’s true. For example:

Lawyer and Client know that Physical Therapist has a lien on any recovery.

Meanwhile, shortly before Client was injured in the skiing accident, Painter painted Client’s house. Client disputed the bill and has yet to pay it in full. Painter has never sued Client or obtained a judgment against Client. Somehow, Painter found out about the ski injury settlement. Painter called Lawyer and directed Lawyer o hold in trust the amount that Painter contends is owed by Client.

To me, Physical Therapist has “an interest” that triggers the rule, Painter does not.

The Virginia opinion lists things that trigger a lawyer’s duties to a third-party creditor:

statutory liens

judgment liens

court order or judgments that affect the funds.

Then, the opinion says:

“Likewise, agreements, assignments, lien protection letters, or other similar documents in which the client has given a third party an interest in specific funds trigger a duty under [the rules]even though the lawyer is not a party to such agreement or has not signed any document, if the lawyer is aware that the client has signed a document.” (emphasis in the original).

And, to me, here’s the key statement:

“In other words, a third party’s interests in specific funds held by the lawyer is created by some source of obligation other than Rule 1.15 itself.”

This makes perfect sense to me. The mere fact that Lawyer is holding the money is not enough to give a third party “an interest” in or “claim” to the funds. That’s the “Painter” example from above.

With all of this said, the Virginia opinion makes a critical point that cannot be ignored. While the general rule is that a lawyer have “actual knowledge” of a third party’s interest or claim to trigger the duties under the rule:

“In some situations, under federal and state law, the lawyer need only be aware that the client received medical treatment from a particular provider or pursuant to a health care plan. In those instances, notice of lien or lien letter may not be required in order for that third party to claim entitlement to funds held by [the] lawyer.”

In other words, the duty of competence includes knowing whether, by law, a treatment provider has a valid interest, claim, or entitlement that may not need to be formally asserted.

Finally, remember, a lawyer’s is to recognize the existence of valid claims and interests to funds you are holding for a client. Rule 1.15(e) does not require a lawyer to resolve the claims and, in fact, prohibits a lawyer from doing so unilaterally.

This column has taken on a life of its own. After a few early meetings out of the office, I need to hurry back to meet with a lawyer who wants to go over his trust accounting system. It’s not clear to me if we’re putting the trust account into our Tuesday or the Tuesday into his trust account. Whatever it is, we’re doing it.

Speaking of “doing it,” here are two things that the trust account rules require lawyers to do promptly:

notify clients & third persons upon receiving funds in which they have interests; and,

deliver to clients & third persons funds to which they are entitled.

The relevant rule is 1.15(d). In a moment, I’ll get to a few of the rule’s nuances. I’ll dive deeper in a bonus post that will go up later today.

For now, remember the movie Rounders. When someone is entitled to funds that are in your trust account, channel your inner Teddy KGB: pay them, pay them their money.

Prompt Notification

Upon receiving funds in which a client or third person has an interest, a lawyer must promptly notify the client or third person. It’s rare that I’ve encountered a failure to comply with this rule. Only two instances jump to mind:

a lawyer represented a client in a hotly contested dispute over a will. The lawyer resolved the matter and received over $300,000 from the estate’s attorney. The lawyer did not notify the client, preying upon the fact that client had become estranged from the family and would never find out. Eventually, client found out. Lawyer was disbarred. Of course, lawyer’s failure to notify the client paled in comparison to the theft.

a lawyer represented a client who had been injured. upon settling the claim, the lawyer received a check from an insurance company. despite having actual knowledge of a third-party medical provider’s lien, the lawyer failed to notify the medical provider and disbursed the funds to the client.

Anyhow, each instance spurred discussion as to whether Vermont should adopt a payee-notification rule. We’ve not. Rather, the onus remains on the lawyer, upon receiving funds, to notify clients & third persons who have interests therein. Later today, I will post a blog that addresses the question “when does a third person have an interest in client funds?

Prompt Delivery

This is the Teddy KGB rule: pay people. Here’s a flow chart:

money comes in and is deposited into trust;

lawyer notifies people who have interests in the money;

as soon as it is clear that a client or third person is entitled to the money, lawyer disburses, keeping in mind, as we discussed last week, the duty to wait for a deposit to become “collected funds.”

Two thoughts here.

First, the duty is to deliver funds to which a client or third person entitled promptly. That is, there’s no luxury of delivering “whenever I can get around to doing my bookkeeping.”

Second, lawyers often forget that they themselves are third persons. That is, lawyers seem to have little problem promptly paying clients, but then they leave their share of the money in trust.

That has a name: COMMINGLING.

The first post in the Trust Account Tuesday series was entitled Don’t Commingle.

Once someone is entitled to receive the money that you’re holding in trust, pay that person.

REMINDER

This post assumes that there is no dispute that a client or third person is entitled to the funds in trust. Later today, I will post a blog that addresses a lawyer’s duties when there exists a dispute as to who is entitled to the funds that a lawyer is holding in trust.

“The privilege is different from the rule. The rule talks about ‘information relating to the representation.’ A comment to the rule makes it clear that this encompasses more information than is covered by the privilege.”